On the same day that Judge Kelley issued the Velasquz decision, Judge Doty held the opposite in Carpenter v. RJM Acquisitions, LLC -- F.Supp.2d --, 2011 WL 2148382 (D. Minn. 2011): Carpenter failed to follow the appropriate statutory procedure to dispute the debt. See 15 U.S.C. § 1692g(b) (outlining steps for consumer to dispute debt). If the consumer does not dispute… Read More
In Velazquez v. NCO Financial Systems, Inc., 2011 WL 2135633 (E.D.Pa. 2011), Judge Kelley held that a debtor is not required to first dispute the debt before undertaking legal action: NCO argues that Velazquez's suit is improperly before us because a plaintiff must invoke the dispute procedures of § 1692(g) prior to taking legal action. In support of its… Read More
In Rota-McLarty v. Santander Consumer USA, Inc., 2011 WL 2133698 (D.Md. 2011), Judge Quarles held that an auto finance company waived its right to arbitrate by participating in the litigation and discovery process before filing its petition to arbitrate: Santander argues that it initially participated in this class litigation because it feared that an arbitrator would have compelled… Read More
In Frickco Inc. v. Novi BRS Enterprises, Inc., 2011 WL 2079704 (E.D.Mich. 2011), Judge Zatkoff denied class certification in a TCPA-fax case, explaining: In considering Plaintiff's motion, the Court does not agree that common issues predominate over the individual ones under Rule 23(b) (3). While Plaintiff seeks to certify a class consisting of 3,787 individuals who received facsimile transmissions… Read More
We wrote previously about the California Court of Appeal affirming the vexatious litigant order against Mr. Kinder’s TCPA litigation over the 619-999-9999 telephone number. That followed an earlier report regarding an auto finance company’s defeat of Mr. Kinder in small claims court on the basis that he had assumed the risk of calls by his continued use of that telephone… Read More
We get it -- this case has nothing to do with personal property finance. But, allow us a little snicker this Friday morning because Maryland politicos running for office got their comeuppance under the TCPA when they robocalled Maryland voters. In Maryland v. Universal Elections, -- F.Supp.2d --, 2011 WL 2050751 (D.Md. 2011), Judge Blake held that political speech was… Read More
In Clingaman v. Certegy Payment Recovery Services (S.D. Tex. 2011), here, Judge Atlas found no telephonic harassment based purely on the number of calls to the consumer because, in part, “[d]uring roughly the same time period, Plaintiff filed nine (9) similar lawsuits against various other debt collectors. Plaintiff admitted in his deposition that he kept records of telephone calls from… Read More
In Hasbrouck v. Arrow Financial Services LLC, 2011 WL 1899250 (N.D.N.Y. 2011), Judge D’Agostino held that merely filing suit on a debt without documentation to support the debt at the time of the lawsuit does not violate the FDCPA, because a false or misleading representation requires materiality. The majority of district and appellate courts have routinely held that, “the filing… Read More
In Archer v. United Rentals, Inc. --- Cal.Rptr.3d ----, 2011 WL 1888199 (2011), the California Court of Appeal reversed a class certification under the Song-Beverly Credit Card Act on the basis that meeting the consumer-use requirement was an intensely fact driven inquiry. The decision is too lengthy to reproduce here, even in part, but the Court of Appeal’s summary is… Read More
The Rosenthal Act’s definition of ‘debt collector’ specifically ‘does not include an attorney or counselor-at-law’. (Cal. Civ. Code §1788.2(c)). Decisions universally hold that individual attorneys are exempt from the Rosenthal Act. (E.g. Lutge v Eskanos Adler, P.C. 2007 WL 1521551 (N.D. Cal. 2007). Cases split, however, on whether law firms enjoy the same exemption. Cases finding law firms not… Read More
In Kuenzi v. EuroSport Cycles, Inc., 2011 WL 1883052 (E.D.Pa. 2011), Judge O’Neill held that an affidavit setting forth policies to deliver TILA statements to consumers constituted adequate proof that TILA disclosures were given. In Kuenzi, the plaintiff obtained a loan from defendant Capital One Auto Finance, Inc. to purchase a motorcycle from EuroSport Cycles, Inc. and Don Murray d/b/a… Read More
In Williams v. Delamar Car Co., 2011 WL 1811061 (W.D. Mich. 2011), Judge Quist entered a default judgment against an automobile dealer for TILA violations, but rejected Plaintiff’s ‘spot-delivery’ claim: Plaintiff asserts that Defendant committed a second TILA violation by failing to disclose a hidden finance charge—the fee based on Plaintiff's credit risk—that would not have been charged in a… Read More
In Arellano v. T-Mobile USA, Inc., 2011 WL 1842712 (N.D. Cal. 2011), Judge Alsup held that the United States Supreme Court meant what it said in Concepcion – state laws can not impose impediments to arbitration lest such laws be preempted. Judge Alsup took the next step beyond Concepcion, holding that the Federal Arbitration Act preempts any state-law impediment to arbitration… Read More
In Tolbert v. Automotive Finance Corporation, --- S.W.3d ----, 2011 WL 1842723 (Mo. App. W.D. 2011), the Missouri Court of Appeals upheld an automobile floorplan finance company’s claim against a subsequent consumer purchaser’s claim to a vehicle, where the selling dealer bounced its check to the floorplanner for the vehicle. The Court engaged in little to no UCC analysis, but… Read More
In In re Baer, 2011 WL 1832490 (Bkrtcy. E.D. Ky. 2011), the bankruptcy court held that an automobile company’s repossession of a non-reaffirmed vehicle 2 weeks after an Order of Discharge could violate the automatic stay because the Plaintiff’s bankruptcy remained open. Factually, the Plaintiff's Order of Discharge was entered on October 20, 2010. The Defendant repossessed the Plaintiff's Vehicle… Read More
Judge Mueller didn't actually channel the late-George Carlin. But, in Probasco v. IQ Data Intern., 2011 WL 1807429 (E.D. Cal. 2011), Judge Mueller held that Iqbal/Twombly require a Plaintiff to plead the profane or inappropriate language allegedly used by a debt collector. Before a debt collector's language falls within the prohibition against harassment, it must be “akin to profanity or… Read More
In Zortman v. J.C. Christensen & Associates, Inc., 2011 WL 1576475 (D.Minn. 2011), Judge Ericksen discussed the Foti chronology, and held that an FDCPA claim could be stated where a third party intercepts a voicemail message – even the post-Foti semi-anonymous ones -- if the debt collector had reason to suspect that someone other than the debtor would hear it. … Read More
In a comment submitted to the Federal Communications Commission, the FTC urged its sister agency to hold that sellers of goods and services should be held responsible for sales calls made by others on their behalf, even if the seller did not physically place the calls. The FTC stressed that the FCC should not allow such sellers to escape liability… Read More
As part of its ongoing efforts to ensure that auto dealers’ financing practices comply with federal consumer protection laws, the Federal Trade Commission has completed investigations of nearly 50 automobile dealers across the country to assess their compliance with the FTC’s Rule Concerning Preservation of Consumers’ Claims and Defenses, more commonly known as the “Holder in Due Course” Rule. The… Read More
In Hall v. Ford Motor Credit Co., Inc., --- P.3d ----, 2011 WL 1601167 (Kan. 2011), the Kansas Supreme Court affirmed the propriety of a post-bankruptcy vehicle repossession when the vehicle was significantly impaired for reasons other than non-payment. In a consumer credit transaction, the debtor's filing of a bankruptcy petition does not automatically create a substantial impairment to… Read More
